ENF 6.7 Other relevant powers
The FSA has a range of powers it can use to take remedial, protective and disciplinary action against a person who has contravened a relevant requirement or engaged in market abuse, as well as its powers to seek injunctions under sections 380 (Injunctions) and 381 (Injunctions in cases of market abuse) of the Act or the courts' inherent jurisdiction. Where appropriate, the FSA may exercise these other powers before, at the same time as, or after it applies for an injunction against a person.
When, in relation to firms, the FSA applies the broad test outlined in ENF 6.6.2 G, it will consider the relative effectiveness of the other powers available to it, compared with injunctive relief. For example, where the FSA has concerns about whether a firm will comply with restrictions that the FSA could impose by exercising its own initiative powers (see ENF 3 (Variation of Part IV permission on the FSA's own initiative), it may decide it would be more appropriate to seek an injunction. This is because breaching any requirement imposed by the court could be punishable for contempt (see ENF 6.2.5 G). Alternatively, where, for example, the FSA has already imposed requirements on a firm by exercising its own-initiative powers and these requirements have not been met, the FSA may seek an injunction to enforce those requirements.
The FSA's own-initiative powers do not apply to unauthorised persons. This means that an application for an injunction is the only power by which the FSA may seek directly to prevent unauthorised persons from actual or threatened breaches or market abuse. The FSA will decide whether an application against an unauthorised person is appropriate, in accordance with the approach discussed in ENF 6.6. The FSA may also seek an injunction to secure assets where it intends to use its insolvency powers (see ENF 10 (Insolvency proceedings and orders against debt avoidance)) against an unauthorised person.
In certain cases, conduct that may be the subject of an injunction application will also be an offence which the FSA has power to prosecute under the Act. In those cases, the FSA will consider whether it is appropriate to prosecute the offence in question, as well as applying for injunctions under section 380, section 381, or both. ENF 15 (Prosecution of criminal offences) sets out the offences the FSA has power to prosecute, and the FSA's policy and procedure for prosecution of these offences.
Where the FSA exercises its powers under section 380, section 381 or invokes the court's inherent jurisdiction to obtain an order restraining the disposal of assets, it may also apply to the court for a restitution order for the distribution of those assets. The FSA's policy and procedure in relation to restitution orders is set out in ENF 9 (Restitution and redress).